The Supreme Court recently raised the bar for judicial probity in striking down one of the Court’s own past decisions on the scope of discretion it enjoyed while handling bail applications.
The beneficiary of its benevolence was Umar Khalid, a former JNU student and one of the accused in a narco-terrorism case and thereafter the Delhi riots (2020) case in which he was chargesheeted under the Unlawful Activities Prevention Act (UAPA).
He was in judicial custody for five years although his five other co-accused were released on bail in January. While dismissing his bail application, an earlier bench of the court had considered his role in the conspiracy much more crucial than the other accused, and therefore he had to remain in custody. The current bench differed from the predecessor as in its opinion the sanctity of Justice VR Krishna Iyer’s dictum ‘Bail is the rule and jail is an exception’ could not under any circumstance be violated. This applied even to UAPA cases. Hence Khalid’s release has been ordered.
The apex court’s humanity and judicial flexibility need to be complimented. The SC decision enhances our belief that we are in safe hands as far as personal liberty is concerned. Our judges at every level need to be compassionate rather than be just brilliant.
Systemic shortcomings
Having sung the praise of our judges it will also be appropriate to point out certain shortcomings in the system at lower levels, especially in respect of grant of bail. There are a number of under-trial prisoners who are incarcerated for far too long.
There was a brilliant and exhaustive report decades ago, by KF Rustamji, former DG Border Security Force, that highlighted the plight of such prisoners who were languishing in jails. His report showed how we were cruelly locking up illiterate or semi-literate prisoners who could not afford the money required to move courts for relief. Mind you, all of them were not hardened criminals. Many were guilty of much less transgression of the law but were simply unlucky to have been hauled up by guardians of law. The situation has improved slightly, but only slightly, with the drive for speedy trials. The magnitude of the problem remains critical.
There is a lot that is unsavoury about bail administration by lower courts. As a result bail decisions smack of a lottery. Some judges consider it as charity rather than grant of a right. Where the petitioner is poor and is also perceived to be ideologically anti-establishment, the prospects of grant of bail on the first instance are dim.
We cannot live with such negative perceptions as the Indian criminal justice system has to be looked upon as fair and credible.
The writer is a former CBI Director
Published on May 28, 2026